Written Statement of the American Civil Liberties Union Ahilan T. Arulanantham Deputy Legal Director American Civil Liberties Union of Southern California For a Hearing on “Providing for the Detention of Dangerous Aliens” Submitted to the Subcommittee on Immigration Policy and Enforcement House Judiciary Committee Tuesday, May 24, 2011 1 My name is Ahilan T. Arulanantham. I am the Deputy Legal Director of the ACLU of Southern California. I have spent much of the last seven years representing immigrants who spent months, and often years, in immigration detention. During that time I have served as counsel on several of the major court decisions in the field of immigration detention. My testimony today expresses the ACLU’s strong opposition to the proposed legislation for which this hearing was convened. Although immigration detention centers look and feel like prisons, especially to the immigrants locked inside, from a legal standpoint they differ from the criminal justice system’s prisons in several crucial respects. Immigration detention is a form of civil detention, not a form of criminal punishment. Immigrants are sent to detention centers when the Department of Homeland Security (DHS) wants to deport them from the country. Sometimes that occurs because they have been convicted of a crime. In such cases the immigrants first serve their sentences and then, afterward, instead of being released as a U.S. citizen would be, they are sent to immigration detention while awaiting a decision on whether the conviction will result in their deportation. In many other situations, however, the trigger for immigration detention is not criminal activity at all, but instead some other kind of immigration matter, such as overstaying a visa or attempting to gain asylum. More than half of the people in immigration detention have never been convicted of any crime.1 As one might expect then, the purpose of immigration detention is not to punish people for crimes, but rather to ensure that they appear for their deportation hearings and, if they lose, to facilitate their removal. Because detention while a deportation case is pending is not punishment for criminal activity, immigrants have no right to 1 Donald Kerwin and Serena Yi-Ying Lin, Immigrant Detention: Can ICE Meet Its Legal Imperatives and Case Management Responsibilities? 20 ( Migration Policy Institute Sept. 2009), available at http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf (reporting that 58% of the detainees held on January 25, 2009 did not have criminal convictions). 2 an appointed attorney when they seek to challenge their immigration detention. In fact, an estimated 84% of immigration detainees do not have lawyers.2 Most importantly for present purposes, immigration detainees have no absolute right to a prompt bond hearing before a judge, as all criminal defendants do. The existing immigration laws make bond hearings available for some immigrants in detention, but not for others. In fact, as DHS interprets the immigration laws, even if you win your case, DHS can continue to detain you without bond while it appeals the decision in your favor. As a result, our immigration detention system already detains thousands of individuals who present no danger to the community or risk of flight. Creating a vast new federal preventive detention authority, as the legislation under consideration is guaranteed to do, would result in the unnecessary detention of thousands more individuals who would otherwise contribute to the economy, serve their communities, and support their families, which often include U.S. citizen children and spouses. It would also come at great expense to taxpayers, who would foot the bill at a rate of $122 per detainee per day. Most important, the proposed legislation would also come at great cost to the liberty of thousands of immigrants for whom incarceration without due process is unjustifiable. In our society liberty is the norm, while detention without trial is the narrow exception. The Constitution’s Due Process Clause protects each person’s freedom by ensuring that no one is detained absent strong procedural protections to prevent the unnecessary deprivation of liberty. We cannot support a law that would allow the indefinite detention of the asylum-seeker who thirsts for freedom or the prolonged detention without due process of the immigrant mother who wants to pursue her legal right to stay and care for her U.S. citizen children. Such laws are fit for 2 ABA Commission on Immigration, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases. (2010), 5-8, available at http://new.abanet.org/immigration/pages/default.aspx. 3 repressive regimes, not for the United States of America. The ACLU therefore strongly opposes this bill. I. Raymond, Warren, and Many “Dangerous aliens” is the title of today’s hearing, but most of the immigrants covered by the proposed legislation are anything but dangerous. I want to begin by sharing a few of their stories. Although many advocates focus on individuals who are in immigration custody because they have committed crimes, I also want to discuss those who form the majority of immigration detainees – people who have no criminal history. The Reverend Raymond Soeoth is a Christian Minister who fled Indonesia with his wife in 1999, where they faced persecution for practicing their faith. Reverend Soeoth was initially allowed to work in the U.S. while applying for asylum and eventually became the assistant minister for a church. He also opened a small corner store with his wife. Yet when his asylum application was denied in 2004, the government arrested him at his home and took him into detention. Even though Reverend Soeoth posed no danger or flight risk, had never been arrested or convicted of any crime, and had the right to continue litigating his case in both immigration and federal court, he spent over two-and-a-half years in an immigration detention center while the courts decided whether or not to reconsider his asylum claim. During that time, he never received a hearing before an Immigration Judge to determine whether his detention was justified. Instead, the decision on whether or not to release him was left to DHS officials who did not even interview him, let alone conduct a hearing. Unsurprisingly, they concluded after each review that he should remain detained, leaving Reverend Soeoth separated from his wife, his community and his congregation. Because his wife could not maintain the store that the couple had jointly 4 run, she was forced to shut it down – all because our government would not give him a 15- minute bond hearing in front of an Immigration Judge. In February 2007, after we filed a habeas corpus petition in federal court to obtain a bond hearing for Reverend Soeoth, the court ruled in our favor. After two and a half years in detention, he finally received a bond hearing and was ordered released by an Immigration Judge. He has lived in his community – back with his wife and his congregation – ever since, without doing any harm to anyone. He ultimately returned to his position as a congregational leader, won the right to reopen his case, and will likely be granted asylum. Under the proposed legislation, he would never have gotten the bond hearing that led to his release. Mr. Soeoth is not alone. Warren Joseph is a lawful permanent resident of the United States and a decorated veteran of the first Gulf War. He moved to the United States from Trinidad nearly 22 years ago and has five U.S. citizen children, a U.S. citizen mother and a U.S. citizen sister. A few months after coming to the U.S., when he was 21 years old, Warren enlisted in the U.S. Army. He served in combat positions in the Persian Gulf, was injured in the course of duty, and received numerous awards and commendations recognizing his valiant service in that war. At one point during the conflict, he returned to battle after being injured and successfully rescued his fellow soldiers. Like many Gulf War veterans, Warren returned from the war with symptoms that were only later diagnosed as Post Traumatic Stress Disorder (PTSD). His sister recalls that she “was shocked to see how much Warren had changed.” He was anxious, had recurring nightmares about killing people, and would wake up in a cold sweat. He became withdrawn and thought about suicide constantly. 5 In 2001, Warren unlawfully purchased a handgun to sell to individuals to whom he owed money. He fully cooperated with an investigation by the Bureau of Alcohol, Tobacco, and Firearms, and his actions were not deemed sufficiently serious to warrant incarceration. Two years later, however, suffering from partial paralysis and debilitating depression, Warren violated his probation by moving to his mother’s house and failing to inform his probation officer. He served six months for the probation violation. Upon his release, in 2004, he was placed in removal proceedings and subjected to mandatory immigration detention. Warren remained in immigration detention for more than three years while he fought his deportation. During his entire period of incarceration, he was never granted a bond hearing to determine whether his detention was justified. Indeed, even after the Third Circuit Court of Appeals concluded that he was entitled to apply for relief from removal, and remanded his case back to the immigration court, the government continued to subject Warren to mandatory detention. My colleagues at the ACLU filed a habeas petition on Warren’s behalf, which was pending when the Immigration Judge granted him relief from removal, and DHS finally released him. Fortunately, DHS chose not to appeal the Immigration Judge’s grant of relief.